Australia, April 28 -- New South Wales Land and Environment Court issued text of the following judgement on March 28:

1. The plaintiff seeks an order that the defendant attend to be cross examined on his affidavits of discovery.

2. The defendant, who is represented in the proceedings, does not oppose the order.

3. The general rule is that an affidavit of discovery is conclusive, and that cross-examination on an affidavit of discovery is not permitted except in exceptional circumstances. [1] The most recent judicial consideration of this question that I have been able to locate is that of Garling J in Con Ange v Fairfax Media Publications Pty Ltd. [2] In that decision, Garling J expressed a more nuanced view than had perhaps hitherto been expressed in relation to this matter when his Honour said:

"For my part, particularly in light of the provisions of s 56 of the Civil Procedure Act 2005 [(NSW)] and the extensive use of the modern tools of case management to ensure that the real issues in dispute are addressed in a cost effective manner ... I see no compelling reason to accord to an affidavit verifying a list of documents by way of discovery any special status. Proper compliance with a party's obligations of discovery under the overall supervision of the Court is an important and necessary part of modern litigation. The Court has the capacity to limit discovery, or control the process of discovery, so that it does not become unduly onerous."

4. The plaintiff is a trader in financial products. The defendant is a former employee at the plaintiff's Canberra office. The plaintiff alleges that whilst employed by it, the defendant worked for another trader, FP Markets, in breach of his terms of employment.

5. On 22 October 2024, the defendant participated in interviews with the plaintiff's personnel in which he admitted that he had worked for FP Markets while working at the plaintiff and was working with others at the plaintiff's office to do that work for FP Markets.

6. On 22 October 2024, the plaintiff terminated the defendant's employment.

7. The following day, 23 October 2024, the plaintiff's solicitors wrote to the defendant foreshadowing that it was likely to commence proceedings against the defendant and "requiring" him not to "destroy any documents relating to" his employment with the plaintiff and his involvement with FP Markets.

8. On 13 November 2024, McGrath J made orders restraining the defendant from, in effect, acting in breach of his employment terms with the plaintiff for reasons published on 15 November 2024. [3]

9. On 29 November 2024, I made orders setting this matter down for hearing for four days commencing 5 May 2025. I also, by consent, made an order that the defendant produce by 20 December 2024 a document referred to in the "Schedule", which was in the following form:

"1. All documents created on or after 22 December 2021, comprising or recording communications sent to or received from the defendant on one part and on the other:

(a) FP; or

(b) Zhonglin (Johnny) Guan."

10. Ultimately, on 19 February 2025, the defendant made an affidavit in which he said:

"I can confirm to the Court that I no longer possess the documents referred to in the [Schedule] on around 21 October 2024."

11. The defendant also deposed:

"I logged on my personal email address ... on or around 22 October 2024, and noticed that my personal email address above mentioned had been invaded at night on 22 October 2022 with a log in by an IP address of New South Wales from a desktop computer. ...

Due to safety of internet, I immediately changed password [sic] of logging in my personal email, also I deleted a lot of emails believed [sic] involve personal information and personal confidentiality. I confirm that I no longer use the email address [above]. Thus, I do not have anything in my possession referred to the Schedule [sic] that requires me to produce."

12. A short time later, on 2 March 2025, the defendant made his affidavit of discovery, in which he gave a different account of what had happened as follows:

"I have deleted all emails related to my personal information and any emails involving my last employment with Trademax after I noticed that my personal email ... has been invaded by the Plaintiff or its employee or agent without my consent on or around 21 October 2024."

13. The plaintiff is aware, from its interrogation of its own records, of communications between the defendant and FP Markets. It is therefore perhaps notable that the defendant made no reference to such documents in either of those affidavits. Some of the documents of which the plaintiff so became aware were deployed by it in the hearing before McGrath J.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195f35187ea12907e6ad61b6)

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